my views on the local news in Minnesota

September 2007

September 30, 2007

Today Fraterslibertas.com
picks up on a Wall Street Journal article reporting on how the World
Bank's environmental economics department concluded that human capital
contributes more to the wealth of a country than other natural
resources:

Two years ago the
World Bank's environmental economics department set out to assess the
relative contributions of various kinds of capital to economic
development. Its study, "Where is the Wealth of Nations?: Measuring
Capital for the 21st Century," began by defining natural capital as the
sum of nonrenewable resources (including oil, natural gas, coal and
mineral resources), cropland, pasture land, forested areas and
protected areas. Produced, or built, capital is what many of us think
of when we think of capital: the sum of machinery, equipment, and
structures (including infrastructure) and urban land.

But
once the value of all these are added up, the economists found
something big was still missing: the vast majority of world's wealth!
If one simply adds up the current value of a country's natural
resources and produced, or built, capital, there's no way that can
account for that country's level of income.

The
rest is the result of "intangible" factors -- such as the trust among
people in a society, an efficient judicial system, clear property
rights and effective government. All this intangible capital also
boosts the productivity of labor and results in higher total wealth. In
fact, the World Bank finds, "Human capital and the value of
institutions (as measured by rule of law) constitute the largest share
of wealth in virtually all countries."

September 23, 2007

Point Source #1: Dirty water going into the stormwater system from the construction site of the new U of M football stadium results in enforcement action and possible fines of tens of thousands of dollars. Capitalistic contractor trying to make a buck without obeying the rules.

September 15, 2007

Today's ThisWeek tells us that at their recent meeting, most Dakota County commissioners expressed frustration and resentment towards Governor Pawlenty for vetoing transportation funding. They're upset because they didn't get the tax increases they wanted. In particular, Dakota County Board Chair Mike Turner, serving District 5 in Burnsville since 1989, said he resented the fact that the governor did not grant his request for a personal meeting. Sounded like a tantrum to me.

The article did not mention that Governor Pawlenty had his own transportation bill in the last legislative session. But Turner and his buddies were "frustrated" and "resented" that Pawlenty vetoed their transportation bill.

Commissioner Joe Harris said despite about five years of building "a tremendous amount of transportation alliances," and funding bills have passed, they have been unable to over ride the governor's veto.

Commissioner Tom Egan suggested that the County should "better prioritize and narrow its list of legislative initiatives in order to better define the county's concerns," but the article did not report any agreement to that suggestion. Instead, Commissioner Paul Krause of Lakeville said that narrowing the county's focus would be difficult, and he thinks the county has been doing "a heck of a job."

County Administrator Brandt Richardson, who would like to see a local sales tax, encouraged "more personal contact with legislators to build relationships."

Because the voters want Pawlenty to do exactly what he has been doing in holding down taxes. You don't have enough votes to override Pawlenty's veto because the voters didn't give them to you. Why aren't you talking about how to get runaway spending under control? "Nurturing people" isn't part of the government's job.

Wake up. If you cannot act like leaders, then resign. On the other hand, if you want to do the best job for your constituents, then maybe you should take off your DFL blinders and pursue solutions that are in line with what the voters have told you they want.

September 14, 2007

Local elections (county level and
below) are probably more important to the average Joe and Jane Taxpayer
because those elections have a more direct effect on their day to day
lives.

In Eureka Township, where I live with my husband, there are people who at this very moment are putting together recommendations to submit to the township to take away property owners' rights. No-one's talking about putting the recommendations on any ballot to be voted on by the township's citizens on election day. Instead, the Eureka Township Strategic Vision Citizen Advisory Committee will submit its recommendations to the appointed members of the Planning Commission, who will then make their recommendations to the Eureka Town Board.

The Eureka Town Board may then decide to adopt these recommendations in the form of township ordinances. To do this, the board will publish ten days' notice of a public hearing in the legal notices section of the local paper (how many people actually read these?), hold a public hearing and then decide what to enact. The published notice will not go into any detail about what exactly is being considered.

The Eureka Town Board could, if it decided to, submit new land use and zoning regulations to the voters. This has not, however, been its practice. Since 2005, the Eureka Town Board has re-written its ordinances four times, and is about to do so a fifth time, without submitting any of the changes to the voters.

Although the more streamlined process of publishing a short notice in the paper followed by a public hearing and a decision by the Board is certainly more efficient than submitting important questions to the voters, democratic government is not supposed to be efficient. The Nazis were efficient. Businesses try to be efficient in order to remain profitable. But democratic government is supposed to have different purposes and goals.

This type of governmental efficiency has become more and more common. We are accustomed to thinking that we are a democracy because we have elections, and that it is our responsbility as citizens to vote on election day. The fact is, important local government decisions that affect our most basic rights are being made right and left every day without any voter input at all. This is not simply because people don't vote on election day, but because those in power do not want their input. Perhaps because they believe that the voters are too stupid, or too much attached to their individual rights, to vote the "right" way.

We need to do more than just show up on election day and vote. We need to remind our elected representatives that they are doing our business. We need to insist that they do that business in the light of day. We need to inform ourselves and each other about what's going on. We need to tell our elected representatives not to abdicate their responsbility to make policy decisions and instead hand those determinations over to bean counters, scientists, single purpose agencies or organizations, or others who have no accountability to the voters and place no importance on individual rights.

Why change the Clean Water Act? Because last year the US Supreme Court refused to apply the Clean Water Act, with its provisions regarding "navigable waters," to a Michigan cornfield. Oberstar and environmental organizations think that the Clean Water Act should have applied to the cornfield. They want the federal Clean Water Act to apply to anyplace where water collects, even if it only collects there every once in a while, like in a wetland or a depression in the earth. Or your kitchen sink.

This is not about clean water. It's about power.

WATERS OF THE UNITED STATES.

Here's a picture of the cornfield that was the subject of years of criminal and civil lawsuits culminating in the US Supreme Court's decision in 2006 in Rapanos v. United States deciding that the federal Clean Water Act did not apply to this land. The federal government wanted millions of dollars in fines and penalties from the seventy year old grandfather who failed to get a federal permit before clearing his cornfield, and they wanted to put him behind bars, too. What did Rapanos do that was so terrible? When his grading equipment hit the concrete foundation of an old farmhouse that had been on the site, he took a natural sand pile from another part of his land and spread it over the concrete.

Russ Harding, former director of the Michigan Department of Environmental Quality, visited the Rapanos land and confirmed that even though state and federal authorities called the land "wetland," drainage ditches mandated by county drain commissioners in the early 1900's were in fact keeping the land dry. The nearest navigable water was about 20 miles away from Rapanos' land.

Even though the federal Clean Water Act was originally intended to cover "navigable waters," the EPA and Army Corps of Engineers have been slowly extending the reach of the CWA over the years under a couple of different theories. The Corps eventually included within the definition of "navigable waters" interstate lakes, rivers, streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds, along with any water that could be used as habitat by migratory birds. The migratory bird nexus was struck down by the US Supreme Court in 2001 in Solid Waste Agency v. Army Corps of Engineers. After that, it started using the rationale that anything within the hydrologic cycle could be subject to the Clean Water Act.

THE FEDERAL GOVERNMENT HAS LIMITED JURISDICTION.

One fly in the ointment for these federal agencies is the fact that the US Constitution gives the federal government only limited powers and jurisdiction. The agencies' use of the migratory bird theory attempted to shoehorn their expanded jurisdiction into the framework of interstate commerce by arguing that tourists travel from one state to another in order to hunt migratory birds. After the Supreme Court struck down that rationale, the argument became based on the hydrologic cycle, which is so incredibly broad that it could be used to subject anything or anyone to federal jurisdiction under the Clean Water Act, including your kitchen sink or someone spitting on the sidewalk.

WHAT IS A POLLUTANT?

You may wonder why this matters, because most people take the environmentalist rhetoric at face value - that the Clean Water Act is there to police big polluters who are getting fat at the expense of our health. What they don't tell you is that under the Clean Water Act a “pollutant” can be practically anything. The Clean Water Act defines "pollutant" to include heat, rock, sand, and cellar dirt."

EPA regulations under the Clean Water Act are even broader, stating that pollution is "any man-made or man induced alteration of the chemical, physical, biological and radiological integrity of water." Think about that. While most of us believe that pollution means to add something harmful to the water or air, that's not how the EPA defines it. The EPA regulation says that doinganything is pollution, if it alters the water.

WATER POLLUTION IS WHATEVER WE SAY IT IS.

That way, the EPA doesn't need to prove that whatever you're doing is actually hurting the water or anyone who drinks the water, just that whatever you're doing causes some alteration of the water. And there's no requirement that the alteration be significant in terms of amount. And conceivably, you could alter the water without actually putting anything into the water. Some even believe the Clean WATER Act can be used to control greenhouse gas emissions.

This effort on the part of federal agencies to make it easier for them to fine people and put them in jail is part of the story of the Rapanos case and the current attempt to expand federal jurisdiction far beyond what the US Constitution allows. You see, they don't want to have to prove that whatever their target is doing actually causes harm to navigable waters within federal jurisdiction. The Supreme Court in Rapanos explained that it could have considered an indirect discharge of a pollutant that naturally washed downstream into navigable waters as a violation of the Clean Water Act. The federal government's problem in that case was that it simply did not have any proof that Rapanos' "discharge" of sand ended up in any navigable waters of the US.

MAKING A FEDERAL CASE OUT OF EVERYTHING

The way the Clean Air Act works is that ALL discharges of pollutants into "waters of the United States" are unlawful unless specifically authorized by permit. The permitting process is extremely expensive and time consuming.

Both the National Association of Counties and National Ass'n of County Engineers oppose the legislation because it will greatly increase both the time and costs required to complete government projects. They point out that the Army Corps of Engineers, which oversees the Clean Water Act permit program, is already behind in processing permits, estimated to be about 15,000 permit applications in process, with an estimated wait of several years from application to approval or denial of a permit. A 2002 article estimated the cost of preparing an individual wetlands permit at more than $271,596 without taking into account cost of mitigation, design changes, costs of carrying capital, and other costs.

Currently, when the federal CWA permit program is triggered, it can take more time and money, because of the additional paperwork requirements. When an area is deemed jurisdictional, it is subject to a multitude of regulatory requirements required under the Clean Water Act. It triggers application of other federal laws, such as Environmental Impact Statements (EIS), National Environmental Policy Act (NEPA) and the Endangered Species Act. And often, as part of the approval process, the permit requires the permit applicant to "mitigate" the environmental impacts of the proposed project, sometimes at considerable expense.

The Army Corps of Engineers, who oversees the 404 CWA permit program, is already behind in processing permits. It is estimated that they are 15,000+ permit applications behind with an estimated time lapse of several years from submission to approval/denial.

Based on legal analysis, some of the areas that could be impacted (and thus will require the county to obtain CWA permit approval) under this bill are: roads, gutters, and ditches; sewers and wastewater disposal, including settling ponds; water supply, transfer, and rights; solid waste disposal; county owned/operated airports; stormwater detention and facilities; stormwater channel maintenance; erosion control; pesticide application, mosquito control, and fire retardant sprays; marinas, dams and reservoirs; parks, greenways, forestlands; cleanup/rebuild after natural disasters; economic development.

The National Water Resources Association, a nonprofit federation of state organizations including rural water districts, municipal water entities, commercial companies and individuals, also opposes this legislation:

Clean Water Restoration Act of 2007 Will Trump State Authority

“The so-called ‘Clean Water Restoration Act of 2007’ [H.R. 2421] is just the opposite. It attempts to trump the authority of States and State water law primacy by expanding control of the federal government into all aspects of water use, reaching far beyond the protective programs of the Clean Water Act as it currently stands,” said Scott Campbell, Chairman of the National Water Resources Associations (NWRA) Water Quality Task Force.

The Clean Water Act has been one of the most successful environmental laws ever adopted in our nation’s history. Millions of miles of rivers, lakes, streams, wetlands, estuaries, ponds, and other water-courses are cleaner, more healthy, and functioning in an ecologically natural way thanks to the Clean Water Act. This environmental success story has achieved more in its 35 years than any other environmental law.

Representative Oberstar’s proposal will unleash a torrent of litigation and conflict because of the expansive overreach of H.R. 2421’s language. No longer will the Clean Water Act be limited to the historic federal concern with navigable waters and Commerce Clause authority under the Constitution. Instead, this proposal will expand federal control over every possible type of water body, puddle, moist land area, man-made waterway, storage facility, conveyance system, holding facility, or re-regulating reservoir. The new definition of “waters of the United States” would include everything from swimming pools and hot tubs to stock watering ponds on private property. In addition, any land use activity which has any possible impact upon any of these “waters of the United States” will be regulated and subject to fines and environmental activist lawsuits. None of this will help the environment, but it will produce more environmental lawyers who will make more money and cause more conflict in our society.

“The sponsors of this legislation claim: ‘This bill restores Clean Water Act authority to what existed prior to the Supreme Court’s decisions - it does not expand authority.’ This false statement is either predicated upon a fundamental misunderstanding of the Clean Water Act or is an intentional fabrication of the truth in an attempt to garner support of the uninformed, who lack a sufficient comprehension of the wide-ranging consequences of this unconscionable effort to expand federal control over the lives of our citizens and the authority of the States,” concluded Campbell.

Other organizations opposing Oberstar's bill include:

the US Chamber of Commerce, which warns that it will cause business to grind to a halt because of the long delays in obtaining required permits.

“The original intent of Congress was to broadly regulate pollution without federal oversight of every isolated wet spot in the nation. If this bill becomes law, it would be the most far-reaching expansion of the Clean Water Act in more than three decades and could extend federal jurisdiction to everything from ditches and gutters to groundwater.

The National Corn Growers' Ass'n, warning its members that the bill would put agricultural production practices at risk and create additional economic burdens on producers

Expanding Federal Authority over Water and Land Use Would Delay or Stop Construction Projects Nationwide and Slow Economic Growth. The federal permitting process would increase the cost of maintaining and delay necessary improvement of public and private infrastructure that literally forms the foundation of our nation’s economy, such as highways, bridges, mass transit, airports, flood control, navigation, schools, sewers, and drinking water facilities.

A Backlog of Pending Clean Water Act Permit Requests Exists. The legislation does not propose additional resources to address the added workload. The current backlog of pending requests for necessary permits is between 15,000 and 20,000, and, on average, an individual permit takes 2-3 years to receive. At a bare minimum, the legislation would require an enormous increase in the resources devoted to the federal permitting process simply to keep pace with the increase in demand.

Family Farm Alliance, which wrote to Oberstar expressing its grave concerns about the unprecedented regulatory control the bill gives to federal regulators, and the anticipated litigation resulting from uncertainty and confusion regarding its application

The environmental special interest groups, of course, support Oberstar's bill. It promises fertile new fields of litigation, and an awesome increase in potential power over businesses, governments, and property owners, all to be played out under one set of federal rules.

PASS THE BUCK.

The language of the bill betrays the fact that its author is fully aware that it raises constitutionality issues that will be litigated in courts if the bill is passed. Rather than make an honest, responsible attempt to craft a bill that could be upheld under the US Constitution, the bill simply leaves that question to be sorted out by the courts. Legislators voting for the bill will boast that they voted for clean water. Political contributions from large environmental organizations will continue.

THE PASS THE BUCK GAME IS FINANCED BY CONSUMERS AND TAXPAYERS.

In the meantime, if the bill passes, the rest of us will pay the high price that results from not knowing how the courts will ever interpret this horribly misguided expansion of federal jurisdiction. Both consumer costs and taxes will increase to subsidize both the litigation and the increased fines and penalties to be paid to agencies who do not even have to prove that the environment was damaged before they impose those fines and penalties.

September 06, 2007

One of my fondest childhood memories is of my mother popping popcorn in a little bit of oil in a large heavy pot. If she ever wanted to get all eight of us in the kitchen at the same time, all she had to do was to pop some popcorn. The wonderful smell wafted upstairs, along with the popping sounds, and we followed that lovely smell downstairs. After it was popped, she put some melted butter and salt on it and stirred it up with the knife she'd used to cut the butter before melting it. Makes my mouth water just thinking of it.

All these years we thought butter would kill us. It hasn't killed my mother yet.

Excuse me while I go make some popcorn the old fashioned way. With butter and salt.

Popcorn tip: put one-third cup popcorn into an old fashioned medium sized brown paper bag (smaller than your ordinary paper grocery bag, you could use one of those so-called sandwich bags, but the free bags are better quality, and they're bigger, too), fold the top over a few times and put in the microwave for up to 3 minutes (If it starts to smell burnt, you kept it in the microwave too long) on high. You don't use oil that way, so you feel better about drizzling on that melted butter. Yum.

September 04, 2007

An admitted sexual psychopath attempted to avoid commitment to the Sex Offender Program by asking to be deported instead.

The Court of Appeals said no, it doesn't work that way. First you get committed to Minnesota's Sex Offender Program and then if the feds deport you later, that's fine.Minnesota Court of Appeals today affirmed Ramsey District Court Judge Salvador Rosas' ruling that a federal deportation order does not deprive a Minnesota district court of jurisdiction to civilly commit that person to the Minnesota Sex Offender Program as a sexual-psychopathic personality and a sexually dangerous person. The Court of Appeals wrote:

On August 3, 2006, the district court committed appellant Hayden Michael Richards to the Minnesota Sex Offender Program (MSOP) as a sexual-psychopathic personality (SPP) and a sexually dangerous person (SDP). And after a 60-day-review hearing, the district court ordered that Richards be indeterminately committed to MSOP. Richards is a citizen of Trinidad and has been ordered deported by the U.S. Department of Immigration and Homeland Security (DIHS).

Richards does not challenge on appeal the district court’s determination that he is an SPP and an SDP under the civil-commitment statute, Minn. Stat. ch. 253B (2006). That determination was based on the district court’s findings that between November 1995 and December 1996, Richards attacked and raped two women and attempted to rape two others.

So, Richards admitted he is a “sexual psychopathic personality” and “sexually dangerous person,” but tried to avoid mandatory commitment under state law because the federal government previously ordered that he be deported. The Ramsey County Attorney argued that even though there is a deportation order, nobody can force the federal government to actually execute the deportation order. And since the feds can deport him whether he has been committed by the state or not, there is no conflict between the federal deportation order and the state's commitment order.

Richards' attorney made a silly argument that because the purpose of the state's commitment statutes is to provide treatment followed by eventual release into the community, committing him would be improper because, under the deportation order, he can't be released into any community in this country.

The Court of Appeals responded by explaining that commitment of persons with a sexual psychopathic personality or who are sexually dangerous is mandatory under the law unless the person can prove that a
less-restrictive treatment option meets his needs and the needs of the
community.